[Federal Register Volume 72, Number 44 (Wednesday, March 7, 2007)]
[Rules and Regulations]
[Pages 10086-10088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3923]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 211

[Docket No. 2006-24141, Notice No. 2]
RIN 2130-AB77


Rules of Practice: Direct Final Rulemaking Procedures

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

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SUMMARY: In October 2006, FRA proposed to amend its rules of practice 
by adopting direct final rulemaking procedures intended to expedite the 
publication of routine or noncontroversial changes. FRA received no 
comments to this proposal, and in this rule adopts its proposed direct 
final rulemaking procedures without change.

DATES: This rule is effective on April 6, 2007.

FOR FURTHER INFORMATION CONTACT: Patricia V. Sun, Trial Attorney, Mail 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20005 (telephone: (202) 493-6038).

SUPPLEMENTARY INFORMATION:

Background

    On October 11, 2006, FRA proposed to amend its Rules of Practice 
(49 CFR Part 211) to adopt direct final rulemaking procedures which 
would expedite its rulemaking process for noncontroversial regulatory 
changes to which no adverse comment was anticipated (71 FR 59698). The 
proposed direct final rulemaking procedures, closely modeled upon those 
of the Office of the Secretary of Transportation (OST) (January 30, 
2004, 69 FR 4455), would allow FRA to reduce the time necessary to 
develop, review, clear and publish routine rules to which no adverse 
public comment was anticipated by eliminating the requirement to 
publish separate

[[Page 10087]]

proposed and final rules. FRA received no comments to the proposal, and 
in this rule adopts its proposed direct final rulemaking procedures 
without change.
    Other agencies, such as the Nuclear Regulatory Commission, the Food 
and Drug Administration, the Environmental Protection Agency, the 
Department of Agriculture, and the Department of Energy (DOE) have 
adopted and successfully used direct final rulemaking procedures for 
routine changes. The DOE, for example, amended its test procedures for 
measuring the energy consumption of clothes washers through a direct 
final rule (October 31, 2003, 68 FR 62197).

The Direct Final Rulemaking Process

    As mentioned above, proceeding through a direct final rulemaking 
enables FRA to eliminate an unnecessary second round of internal review 
and clearance, as well as public review, for noncontroversial proposed 
rules. As proposed, FRA may use direct final rulemaking for 
noncontroversial rules, including those that:
    (1) Affect internal procedures of the Federal Railroad 
Administration, such as filing requirements and rules governing 
inspection and copying of documents,
    (2) Are nonsubstantive clarifications or corrections to existing 
rules;
    (3) Update existing forms; and
    (4) Make minor changes in substantive rules regarding statistics 
and reporting requirements, such as a lessening of the reporting 
frequency (for example, from monthly to quarterly) or elimination of a 
type of data that FRA no longer needs to collect.
    FRA may also use direct final rulemaking process for a particular 
rule if similar rules had been previously proposed and published 
without adverse comment.
    If FRA determines that a rule is appropriate for direct final 
rulemaking, FRA will publish the rule in the final rule section of the 
Federal Register. In a direct final rule document, the ``action'' will 
be captioned ``direct final rule'' and will include language in the 
summary and preamble informing interested parties of their right to 
comment and their right to request an oral hearing, if such opportunity 
is required. The direct final rule notice will advise the public that 
FRA anticipates no adverse comment to the rule and that the rule will 
become effective a specified number of days after the date of 
publication unless FRA receives written adverse comment or a request 
for an oral hearing (if such opportunity is required by statute) within 
the specified comment period. An ``adverse'' comment is one that is 
critical of the rule, suggests that the rule should not be adopted, or 
suggests that a change should be made in the rule. FRA will not 
consider a comment submitted in support of the rule, or a request for 
clarification of the rule, to be adverse. FRA will provide sufficient 
comment time to allow interested parties to determine whether they wish 
or need to submit adverse comments, and will answer any requests for 
clarification while the comment period is running. If FRA receives no 
written adverse comment or request for oral hearing within the comment 
period, FRA will publish another notice in the Federal Register 
indicating that no adverse comment has been received and confirming 
that the rule will become effective on the specified date.
    If, however, FRA receives the timely submission of an adverse 
comment or notice of intent to submit adverse comment, FRA will stop 
the direct final rulemaking process and withdraw the direct final rule 
by publishing a notice in the final rule section of the Federal 
Register. If FRA decides that the rulemaking remains necessary, FRA 
will recommence the rulemaking under its standard rulemaking procedures 
by publishing a notice proposing the rule in the proposed rules section 
of the Federal Register. The proposed rule will provide for a new 
public comment period.
    The additional time and effort required to withdraw the direct 
final rule and issue a Notice of Proposed Rulemaking will be an 
incentive for FRA to act conservatively in evaluating whether to use 
the direct final rulemaking process for a particular rule. FRA will not 
use direct final rulemaking for complex or potentially controversial 
matters.

Regulatory Analyses and Notices

    FRA has determined that this action is not a significant regulatory 
action under Executive Order 12866 or under the Department's Regulatory 
Policies and Procedures. There are no costs associated with the 
proposed rule. There will be some cost savings in Federal Register 
publication costs and efficiencies for the public and FRA personnel in 
eliminating duplicative reviews. FRA certifies that this rule will not 
have a significant impact on a substantial number of small entities. 
FRA does not believe there are sufficient federalism implications to 
warrant the preparation of a federalism assessment. Because this rule 
does not have tribal implications and does not impose direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 (``Consultation and Coordination with Indian Tribal 
Governments'') do not apply.

Paperwork Reduction Act

    This rule contains no information collection requirements under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act of 1995

    FRA has determined that the requirements of Title II of the 
Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 211

    Administrative practice and procedure, Rules of practice.

0
In consideration of the foregoing, FRA amends 49 CFR part 211 as 
follows:

PART 211--[AMENDED]

0
1. The authority citation for part 211 is amended to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.49.


0
2. In part 211, subpart B--Rulemaking Procedures, is amended by adding 
a new section 211.33, Direct final rulemaking procedures, as follows:


Sec.  211.33  Direct final rulemaking procedures.

    (a) Rules that the Administrator judges to be noncontroversial and 
unlikely to result in adverse public comment may be published in the 
final rule section of the Federal Register as direct final rules. These 
include noncontroversial rules that:
    (1) Affect internal procedures of the Federal Railroad 
Administration, such as filing requirements and rules governing 
inspection and copying of documents,
    (2) Are nonsubstantive clarifications or corrections to existing 
rules,
    (3) Update existing forms, and
    (4) Make minor changes in the substantive rules regarding 
statistics and reporting requirements.
    (b) The Federal Register document will state that any adverse 
comment or notice of intent to submit adverse comment must be received 
in writing by the Federal Railroad Administration within the specified 
time after the date of publication and that, if no written adverse 
comment or request for oral hearing (if such opportunity is required by 
statute) is received, the rule will become effective a specified number 
of days after the date of publication.
    (c) If no adverse comment or request for oral hearing is received 
by the Federal Railroad Administration within

[[Page 10088]]

the specified time of publication in the Federal Register, the Federal 
Railroad Administration will publish a notice in the Federal Register 
indicating that no adverse comment was received and confirming that the 
rule will become effective on the date that was indicated in the direct 
final rule.
    (d) If the Federal Railroad Administration receives any written 
adverse comment or request for oral hearing within the specified time 
of publication in the Federal Register, a notice withdrawing the direct 
final rule will be published in the final rule section of the Federal 
Register and, if the Federal Railroad Administration decides a 
rulemaking is warranted, a notice of proposed rulemaking will be 
published in the proposed rule section of the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means 
any comment that the Federal Railroad Administration determines is 
critical of the rule, suggests that the rule should not be adopted, or 
suggests a change that should be made in the rule.

    Issued in Washington, DC, on February 27, 2007.
Joseph H. Boardman,
Administrator.
 [FR Doc. E7-3923 Filed 3-6-07; 8:45 am]
BILLING CODE 4910-06-P